Author: Tina Rasnow

To impose an order re: civil contempt in a child support case the court must make a finding that the party to be held in contempt had the ability to pay child support but willfully refused. Civil contempt is not applicable for situations where the person charged with obeying a court order is unable to do so. Inability to afford legal counsel would also seem to indicate an inability to pay child support. Therefore, court appointed legal counsel based on indigence should not arise in a civil contempt re: child support case because to find the person in contempt should necessarily involve a finding of ability to pay. That being said, the divergence between what should happen, and what actually happens in many court proceedings makes the issues of due process and fundamental fairness raised in the Turner case quite real. For this reason, by recognizing that some affirmative action by the bench officer in determining ability to pay through direct questioning of the party would be needed to establish the basis for a finding of civil contempt, the majority opinion appears to encourage a more proactive fact finding role for judges where unrepresented litigants are involved. In theory this makes imminent sense, and if done well, could eliminate the need for appointed counsel while still achieving fundamental fairness. It somewhat changes the role of the bench officer from an arbiter to an inquisitor, contrary to our long established adversarial model of jurisprudence, but perhaps this change is necessary given the large volume of unrepresented litigants, particularly in family law court, the lack of resources for court appointed or pro bono counsel, and the competing demands for limited resources.